Monday, June 24, 2013

WoW, Child Abuse and Murder

After a jury convicted her of “second-degree federal murder”
and child abuse, and the judge sentenced her to twenty-five years in prison,
Rebecca Christie appealed.U.S. v. Christie, __ F.3d __, 2013 WL 2477252
(U.S. Court of Appeals for the 10th Circuit 2013). Christie was
prosecuted in federal court because the death at issue, and the abuse leading
up to it, all occurred on an Air Force base, which meant “federal authorities
bore the responsibility to investigate and the power to prosecute.”U.S. v.
Christie, supra.

As to why Christie was charged with these crimes, the Court
of Appeals began its opinion with this overview:

For Rebecca Christie, life must have
seemed more virtual than real. She usually awoke around noon, settled in before
her computer, and logged on to World of Warcraft for gaming sessions lasting
well past midnight. There she assumed a new identity in a fantastical world
filled with dragons and demons where players staged heroic adventures with and
against other players.

All the while back in the real world
Ms. Christie ignored the needs of her three-year-old daughter. The neglect
didn't prove fatal so long as Ms. Christie's husband was around to provide some
care. But nine days after her husband left for an out-of-state deployment, the
child was dead from dehydration.

U.S. v. Christie,
supra.

The opinion then describes the facts in the case in more
detail, noting that Christie’s

child began life a healthy baby girl.
But by twenty-one months, something appeared badly wrong. She plummeted to the
bottom fifth percentile in weight for her age and began suffering
from chronic diarrhea. A pediatrician prescribed PediaSure, a nutritional
drink that helps children gain weight. That seemed to do the trick: the
diarrhea soon stopped and BW (the district court and parties refer to the child
by her initials) began gaining weight. By all appearances, she had turned a
corner.

Eventually, Wulf faced a deployment on
the other side of the country. With the little care he provided BW now gone
with him . . . the child was in trouble. . . . [S]he succumbed to dehydration
in nine days. An autopsy revealed. . . . BW simply died from being ignored.

[At trial, medical] experts testified
that BW's desperate condition in the days before her death would have been
blindingly clear. BW would have sought out water as a survival instinct. When
that failed, she would have become lethargic and, on the day before her death,
too weak to move. Her diapers wouldn't have needed changing. She would have had
sticky saliva and then no saliva at all. She would have developed cracked lips,
sunken eyes, and a sunken abdomen.

First responders confirmed this is
exactly what they saw when they found the child. They testified that BW's lips
were cracked and blue, her eyes glassy, and her eyelids so dry they couldn't
close. They said bones protruded from her body and her gums had turned black.

U.S. v. Christie,
supra.(You can read a little more
about the case in this news story.)

One of the issues Christie raised on appeal – and the only
one this post examines – involved the 4th Amendment and her
computer:

Much of the evidence presented at trial
against Christie came from the computer she so prized. From their forensic analysis,
FBI investigators learned Christie's online activities usually kept her busy
from noon to 3 a.m. with little pause. They learned she was in a chat room only
an hour before finding BW near death, and was back online soon afterwards.

They
learned from Christie's messages to other gamers that she was annoyed by her responsibilities
as a mother and `want[ed] out of this house fast.’ When Wulf was slated for
deployment, she announced to online friends that she would soon be free to
`effing party.’

U.S. v. Christie,
supra.

On appeal, Christie claimed “this evidence and more from her
computer was uncovered in violation of her 4th Amendment rights and the
district court should have suppressed it.”U.S. v.
Christie, supra.The court noted
that she did not challenge the government’s seizure of the computer, because
the agents “took possession of the computer . . . with Wulf’s consent.”U.S. v.
Christie, supra.“Everyone accepts he
was at least a co-owner of the computer -- it was a gift from his father -- and
[that] he had at least apparent authority to relinquish its control.”U.S.
v. Christie, supra.

(As Wikipedia explains, consent substitutes for the warrant
required for officers to search and/or seize property.And as I noted in an earlier post, to have
authority to consent to the seizure of property, the person must be at least a
co-owner of the property or police must reasonably believe he/she is a
co-owner.)

Getting back to Christie’s 4th Amendment
argument, she “attack[ed] the propriety of the two searches the government
undertook once it had” the computer.U.S. v. Christie, supra.Christie claimed the warrants “were issued in
violation of the 4th Amendment.”U.S. v. Christie, supra.

The first came in October 2006, five months after agents
seized the computer. U.S. v. Christie,
supra.Christie claimed the
delay violated the 4th Amendment and required the suppression of the
evidence found on the computer.U.S. v. Christie, supra.The court began its analysis of her argument
by noting that “an unreasonable delay in obtaining a search warrant can sometimes
violate the 4th Amendment.” U.S. v.
Christie, supra. It also noted that in “assessing the
reasonableness of a delay in seeking a warrant, . . . we must take account of `the
totality of the circumstances’ in each case as it comes to us, . . .wary
of the temptation to impose `rigid rules, bright-line tests, and mechanistic
inquiries.’ Florida v. Harris, 133 S.Ct. 1050 (2013). U.S. v. Christie, supra.It noted its task was to balance the `the
intrusion on the individual's 4th Amendment interests against the importance of
the governmental interests alleged to justify the intrusion.’ U.S. v.
Place, 462 U.S. 696, 703 (1983).” U.S.
v. Christie, supra

The court found, first, that “it's hard to
see a significant invasion of [Christie’s] 4th Amendment interests
flowing from the” delay. U.S. v. Christie, supraIt noted that while she was “its primary user
and stored a great deal of personal data on the computer”, Wulf consented
to its seizure and she “raised no objection to the seizure at the time or in
the following weeks and months.” U.S. v.
Christie, supra.The court found
that in “these circumstances, the government was entitled to assume . . . that
any 4th Amendment interest in the computer's continued possession had been
voluntarily relinquished. See, e.g., U.S. v. Matlock, 415
U.S. 164, 171 (1974).” U.S. v. Christie, supra.

The Court of Appeals then took up the other factor in the balancing test
noted above, noting that “the government makes out at least a colorable case
for holding onto the computer so long before undertaking a search.” U.S. v. Christie, supra. The agent who
seized it and “later searched it says that in between he was called upon to
help with out-of-town undercover operations in other cases.” U.S. v. Christie, supra. “No one . . .
disputes the existence of these operations” or “questions that they amounted to
a higher law enforcement priority than the computer search in this case.” U.S. v. Christie, supra.It also
noted that Christie, who bore the “burden of proof on her motion", produced evidence “suggesting her case or the others could have been
transferred to another available agent.” U.S. v.
Christie, supra. The court therefore “hesitate[d] to say the government
lacked any colorable grounds for its delay.” U.S. v. Christie, supra.

The Court of Appeals then balanced these interests and found
that “the government's side of the ledger reveals a colorable interest in
prioritizing law enforcement efforts while Christie can point to little harm to
her interests in light of her husband's . . . consent and her lack of
objection.” U.S. v. Christie, supra.
It therefore found that the delay in this case “falls inside the bounds of
constitutionally reasonable conduct, if not by a very great margin.” U.S. v. Christie, supra.

The Court of Appeals then took up Christie’s challenge to
the second warrant, which was that it did not “particularly” describe the place
to be searched and things to be seized, as is required by the 4th
Amendment.U.S. v. Christie, supra.(For more on the particularity requirement,
check out this site.)The warrant authorized a search of Christie’s computer for the
following:

[a]ll records and information relating
to the murder, neglect, and abuse of [BW] from June 19, 2002 (date of birth) to
May 4, 2006, (date computer seized), including:

1. All photographs of [BW].

2. All correspondence and/or documents relating to
[BW].

3. All records and information, including any
diaries or calendars, showing the day-to-day activities of Rebecca Christie
and/or [BW].

4. All addresses and/or contact
information of friends, families, or acquaintances who may have had regular
contact with Rebecca Christie and/or [BW].

U.S. v. Christie,
supra.

Christie claimed paragraph 3 “effectively permitted law
enforcement to search any and all records and information on her computer for
any and all purposes”, which violated the 4th Amendment’s
particularity requirement. U.S. v.
Christie, supra.The government
argued that its search efforts,

including those authorized in paragraph
3, were restricted by the warrant's opening language. . . . [T]he the
government says paragraph 3 didn't authorize it to rifle through Christie's
files looking for any sort of incriminating evidence. Instead,
it had to direct all of its search efforts, including those specified in paragraph
3, to information related `to the murder, neglect, and abuse’ of BW. And that
limiting direction, the government submits, is particularity enough under our
case law.

U.S. v. Christie,
supra.

The Court of Appeals found
it “hard to fault the government's reasoning.” U.S. v. Christie, supra.While it found that the warrant was “surely open to interpretation,” it
was similar to warrants it had upheld in other cases in which the warrant’s “opening
language limited the scope of all later enumerated searches to seeking evidence
of particular federal crimes.” U.S. v.
Christie, supra.It then explained
that “[a]t the very least,” given the prior cases, “we cannot deny that an
objectively reasonable officer acting in good faith could have read the warrant
before us in this same manner -- as restricting the scope of any search to
information “related to the murder, neglect, and abuse of” BW”. U.S. v.
Christie, supra.

Christie, though, had responded to this reasoning with the
argument that

if our current case law endorses the
warrant in this case then our case law needs to be reexamined. In an age where
computers permit access to most every `paper and effect] a person owns, she
fears that merely restricting the government to a search topic or objective
does little to prevent it from examining along the way virtually every bit and
byte of our lives. Risking with it the possibility the government will claim to
find `in plain view’ evidence of crimes totally unrelated to the reasons
spurring their search in the first place.

The text of the 4th Amendment says the
government must identify with particularity `the place to be searched’ and
requiring it to describe that place tersely as `a computer’ is to allow the
government to traipse willy-nilly through an entire virtual world. To prevent
that, Christie suggests a warrant must go further: it must specify limitations
not just what the government may search for but how the
government should go about its search.

U.S. v. Christie,
supra (emphasis in the original).

The government responded with the argument that

it's often difficult to know what
search protocols might be reasonably required at the time of a warrant
application, before the computer has been examined. Computer files can be
misnamed by accident, disguised by intention, or hidden altogether, leaving
investigators at a loss to know ex ante what sort of search
will prove sufficient to ferret out the evidence they legitimately seek.

U.S. v. Christie,
supra.

The Court of Appeals explained that, in its prior cases, it
had not required search protocols, and further explained that even if courts do
not require

particular search protocols up front in
the warrant application process, they retain the flexibility to assess the
reasonableness of the search protocols the government actually employed in its
search after the fact, when the case comes to court, and in light of the
totality of the circumstances. Unlike an ex ante warrant
application process in which the government usually appears alone before
generalist judges who are not steeped in the art of computer forensics,
this ex post review comes with the benefit, too, of the
adversarial process where evidence and experts from both sides can be
entertained and examined.

U.S. v. Christie,
supra.

It also noted that Christie, who bore the burden of showing
this search violated the 4th Amendment, “offered little evidence or
argument suggesting how protocols the government followed in this case were
unreasonable or insufficiently particular, especially when compared with
possible alternatives.”U.S. v. Christie, supra. And it found that "[w]itout more help along these lines, we simply cannot assess rationally her challenge to the government's search procedures in this case and must leave the development of the law in this arena to future cases." U.S. v. Christie,
supra.

For these and other reasons, the Court of Appeals affirmed
Christie’s convictions and sentence.U.S. v. Christie, supra.